FALL 2000 ISSUE

Journal Home

Penn Law Home

Adler has been busy since he arrived at Penn, with scholarly articles, symposium presentations, and professional conferences enhancing his already impressive credentials at a steady pace. Among his most recent projects are several forthcoming articles, including "Rights and Rule Dependence: Can The Two Coexist?" which is slated to appear in Legal Theory later this year as part of a symposium Adler co-organized with Professor Michael Dorf of Columbia University Law School; and "Beyond Efficiency and Procedure: A Welfarist Theory of Regulation," which was presented as part of a Law Review symposium on regulatory theory and administrative law sponsored by the University of Florida.

He has been probing the dynamic tension between rights and rules for the past several years. In his research, as well as in his approach to governmental cost-benefit analysis, Adler is very much concerned with the idea of morality in law, how the courts and government agencies address questions that cut to the heart of our society's deeper questions.

"The students are incredibly enthusiastic; there's a great degree of interest in class. I can't imagine just doing research and not having the time in the classroom"

His upcoming article for Legal Theory amplifies points made in a 1998 article for the University of Michigan Law Review, "Rights Against Rules: The Moral Structure of American Constitutional Law;" and in a recent article for the Harvard Law Review, "Rights, Rules, and the Structure of Constitutional Adjudication: A Response to Professor Fallon." He argues that constitutional rights in this country are not so much protections for individual actions, but, rather, "rights against rules." The task of constitutional reviewing courts, Adler suggests, is to repeal or amend statutes and other legal rules that fail to meet constitutional norms, rather than to protect the personal rights of individual constitutional litigants. In adjudicating a constitutional challenge, courts should be concerned with the general impact of a challenged rule, not with its effect upon the particular litigant who has brought the challenge.

"The Bill of Rights does indeed touch on moral matters," Adler embellishes. "There are open-ended terms like 'free speech' and 'unreasonable search and seizure' but how the constitutional text should be interpreted is often quite unclear." Because of such inherent ambiguity, Adler does not consider himself an "originalist," someone who favors leaning heavily on the views of the Framers when it comes to interpreting the Constitution today. "Our concern should not be what it meant then but what it means now," he asserts." I don't see any real point if we're trying to incorporate these broad terms today why we would want to refer to the Framers' beliefs." Adler advocates looking at the Constitution as a whole, rather than trying to discern original meaning, or the scope of an individual provision, when trying to engage directly in a moral argument.